Each Party (as “Receiving Party”) agrees that all code, inventions, know-how, business, personal data, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Data, pricing information, FlexOS Technology, Beta Releases (including the existence of), performance information relating to the Services, Introductory Service or Beta Releases, and the terms and conditions of this Agreement shall be deemed Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (A) hold in confidence and not disclose any Confidential Information to third parties and (B) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Clause 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Clause 10.
The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document:
was rightfully in its possession or known to it prior to receipt of the Confidential Information;
is or has become public knowledge through no fault of the Receiving Party;
is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
is independently developed by employees of the Receiving Party without use of or reference to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Data And Privacy
Customer is solely responsible for the accuracy, content and legality of all your Customer Data and agrees to comply with all applicable laws in its use of the Services, Introductory Service and Beta Releases. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulations.
Without limiting FlexOS’s obligations hereunder, Customer acknowledges that Customer is responsible for properly configuring and using the Service, Introductory Service and Beta Releases and otherwise taking reasonable action to secure and protect Customer accounts and Customer Data.
All fees are as set forth in the applicable Order Form and will be paid by Customer within seven (07) days of date of invoice, unless otherwise specified in the applicable Order Form or SOW. Except as expressly set forth in an Order Form or SOW: (A) save for Qualified Prior Payment, payment obligations are non-cancelable and fees are non-refundable; and (B) Customer may not decrease the License Entitlement or downgrade to the Introductory Service during the applicable Subscription Term. Where Customer designates use of a third-party payment processor network, Customer will be responsible for payment of all fees and charges associated with use of such network (including registration, participation, and payment processing fees) and FlexOS may invoice for such fees together with the subscription fees or on separate invoice(s). For Service subscriptions that are usage based, for overage incurred during the Subscription Term, FlexOS will calculate Customer’s monthly usage in accordance with the lower of: (A) overage rates set forth in the Order Form, or (B) the usage rates as posted or otherwise made available to Customer. In such event, FlexOS will invoice Customer based on the prior month’s activity. Such overage fees are due and payable immediately upon invoice
For certain Service subscriptions, pay as you go billing may be made available to Customer. Unless otherwise set forth in an applicable Order Form:
FlexOS will calculate Customer’s usage and invoice Customer for the upcoming month’s activity;
Customer will pay FlexOS the applicable the usage rates as posted or otherwise made available to Customer;
fees are due and payable immediately upon invoice; and
FlexOS reserves the right to increase the fees by giving Customer at least thirty (30) days prior written notice. FlexOS may bill Customer more frequently for fees accrued if the Customer account is suspected to be at risk of non-payment.
Any Subscription fees unpaid by you by the due date shall thereafter bear interest at the rate of twelve percent (12%) per annum (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid. Without derogating from any other remedies available to FlexOS under this Agreement or by law, if you have any outstanding debts in connection with any Services provided by FlexOS under any current or past Order Form, then, without affecting any of your payment obligations under the Agreement (including, any payment obligations under an Order Form) and without limiting any other rights that may be available to FlexOS under the Agreement, FlexOS shall have the right to suspend or cease performance of the Services until such debt is paid. All amounts owed to FlexOS are non-cancellable and fees paid are non-refundable, except as explicitly otherwise stated in the Agreement.
FlexOS may use various billing service providers. When using such a provider’s services, you agree to be subject to, and to comply with, the terms and policies of such provider. FlexOS shall not be liable and/or responsible for any acts or omissions of such billing providers.
All fees payable hereunder, do not include any local, state, or federal sales, use, excise, personal property, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by you. For the avoidance of doubt, you shall not be responsible for any payment of taxes based on FlexOS’s net income.
FlexOS Shall Defend Customer From And Against Any Claim By A Third Party Alleging That The Service When Used As Authorized Under This Agreement Infringes Any Trademark Or Copyright Of Such Third Party, Enforceable In The Jurisdiction Of Customer’s Use Of The Service, Or Misappropriates A Trade Secret (But Only To The Extent That Such Misappropriation Is Not A Result Of Customer’s Actions) (“Infringement Claim”) And Shall Indemnify And Hold Harmless Customer From And Against Any Damages And Costs Awarded Against Customer By A Court Of Competent Jurisdiction Or Agreed In Settlement By FlexOS (Including Reasonable Attorneys’ Fees) Resulting From Such Infringement Claim. FlexOS Will Have No Obligation And Assumes No Liability Under This Clause 9 Or Otherwise With Respect To Any Claim Based On:
if the Service is modified by any party other than FlexOS, but solely to the extent the alleged infringement is caused by such modification;
if the Service is combined, operated or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by FlexOS where there would be no Infringement Claim but for such combination;
to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service;
if Customer settles or makes any admissions with respect to a claim without FlexOS’s prior written consent; or
to any use provided on a no-charge or evaluation basis. THIS CLAUSE 7 SETS FORTH FLEXOS’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
If Customer’s Use Of The Service Is (Or In FlexOS’s Opinion Is Likely To Be) Enjoined, If Required By Settlement Or If FlexOS Determines Such Actions Are Reasonably Necessary To Avoid Material Liability, FlexOS May, At Its Option:
Procure For Customer The Right To Use The Service In Accordance With This Agreement;
Replace Or Modify, The Service To Make It Non-Infringing; Or
Terminate Customer’s Right To Use The Service And Discontinue The Related Support Services, And Upon Customer’s Certification Of Deletion Of The Software (If Any), Refund Prorated Pre-Paid Fees For The Remainder Of The Applicable Subscription Term For The Service.
Customer Will Defend, Indemnify And Hold FlexOS Harmless From And Against Any Damages And Costs (Including Reasonable Attorneys’ Fees And Costs Incurred By FlexOS) Finally Awarded Against FlexOS Arising From Or In Connection With Any Claim Alleging That FlexOS’s Use Of The Customer Data Infringes A Copyright, Trademark, Trade Secret Or Breaches Privacy, Or Publicity Right Of A Third Party.
Agencies And Partners
If you are an agency or a party representing, or providing services for the benefit of, a third party (“Agency Client“), you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that Agency Client (and upon our request shall provide evidence thereof). You further represent and warrant that such Agency Client has provided you with explicit permission to collect on its behalf and view Customer Data and that you shall use such Customer Data strictly in accordance with the permissions provided to you by such Agency Client and the terms of this Agreement. You shall ensure that each Agency Client agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). You acknowledge and agree that: (i) FlexOS makes no representations or warranties for the direct or indirect benefit of any Agency Client; and (ii) you will not make any representations or warranties to such Agency Client on behalf of FlexOS. You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to FlexOS, the Services, or use thereof. You agree to indemnify, hold harmless and defend FlexOS, from and against any claims or actions and any related liability arising out of or relating to: (a) any representations and warranties made by you concerning any aspect of the Services to an Agency Client; (b) any claims made by or on behalf of any Agency Client pertaining directly or indirectly to your use of the Services; and (c) any claims with respect to acts or omissions of an Agency Client in connection with the Services.
The Services enable you to measure and analyze your marketing campaigns with certain third parties that you work with, such as advertising networks, publishers and analytics providers (“Partners“). For such purpose, you may, through your configuration of the Services, direct FlexOS to share End User Data with, and receive data related to, End Users from Partners (“Shared Data“). Pursuant to the foregoing, you hereby grant FlexOS the right to share Shared Data with Partners and to obtain and process Shared Data from Partners. Customer acknowledges and agrees that: (i) the sharing of such Shared Data between FlexOS and Partners shall be enabled only to the extent supported by the Partner and FlexOS; (ii) any use of Shared Data by a Partner shall be subject to your own agreements with Partner; (iii) FlexOS shall have no liability or responsibility in connection with any actions or omissions by Partners; (iv) any use or processing of Shared Data may be subject to certain limitations and restrictions imposed by Partners including requirements by Partners to delete Shared Data they share with FlexOS after a certain period of time; and (v) that you will indemnify, hold harmless and defend FlexOS from and against any claims or actions or any related liabilities arising from your instructions to share Shared Data with a Partner. For the purpose of the Agreement (including the obligations under Section 5 hereunder) the term “End User Data” shall include Shared Data.
EXCEPT FOR THE WARRANTY IN THIS CLAUSE 9, THE SERVICES ARE PROVIDED “AS IS”. NEITHER FLEXOS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, FLEXOS DOES NOT WARRANT THE Service WILL BE ERROR-FREE OR THAT USE OF THE Service WILL BE UNINTERRUPTED. FLEXOS’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY ERROR SHALL BE LIMITED TO PROVISION OF SUPPORT SERVICES.
LIMITATION OF LIABILITY
FlexOS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOSS OF REVENUE, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF FlexOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, FlexOS’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE 12 (TWELVE) MONTHS PRECEDING THE APPLICABLE CLAIM, IN THE AGGREGATE.
SOME OF THE LIMITATIONS PROVIDED HEREIN MAY NOT BE ALLOWED UNDER THE LAWS OF CERTAIN JURISDICTIONS. IF ANY SUCH LAW IS DEEMED TO APPLY TO THE AGREEMENT THEN THE LIMITATIONS SET FORTH HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER SUCH LAWS.
As between the Parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to FlexOS a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services, Introductory Service and Beta Releases to Customer during the Subscription Term.
The Services, Introductory Service, Beta Releases, Documentation, including all copies and portions thereof, and all intellectual property rights therein, including, but not limited to derivative works, deliverables, Updates, enhancements and modifications therefrom (“FlexOS Technology”), shall remain the sole and exclusive property of FlexOS. Customer is not authorized to use (and shall not permit any third party to use) the FlexOS Technology or any portion thereof except as expressly authorized by this Agreement.
FlexOS may process Service Analytics for internal business purposes in order to deliver, enhance, secure and support the Services, Introductory Service, Beta Releases and Software. Customer may have the ability to configure the Services, Introductory Service and Beta Releases (as applicable) to limit the Service Analytics that are collected. Customer may refer to the Documentation and/or Customer’s account representative for more information. For the purpose of this paragraph, “Service Analytics” means all information and data that the Services, Introductory Service, and Beta Releases generate or otherwise obtain from Customer’s use of the foregoing, including but not limited to usage statistics, telemetry and analytics and similar information, collected by cookies, web beacons, and other similar applications.
FlexOS may disclose the results of its analysis of the Service Analytics publicly or to third parties in connection with our marketing and promotion efforts, including but not limited to presentations, technical reports and whitepapers, provided that such results do not contain any personally identifiable information, or enable a third party to determine the source of such information.
Term And Termination
This Agreement will continue for so long as there is an Order Form in effect between the Parties or for so long as Customer is using the Introductory Service, unless earlier terminated pursuant to the terms of this Agreement.
Termination for Cause
Either Party may terminate this Agreement (or any affected Order Form or Statement of Work)
upon the other Party’s material breach that remains uncured for thirty (30) days following written notice of such breach, except that termination will take immediate effect on written notice in the event of a breach of Clause 2.2 (Use Restrictions), Clause 2.4 (Use of Services Deliverables) or Clause 10 (Confidential Information); or
immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (and not dismissed within sixty (60) days thereafter).
Termination for Convenience
Either Party may terminate this Agreement, Order Form(s) or Statement of Work, for any reason or for no reason, by providing the other Party at least thirty (30) days’ prior written notice. However, in the event of a Customer termination for convenience, Customer shall not be entitled to any refund or relief from payment of any fees paid or payable under the Agreement, applicable Order Forms or Statement of Work.
Treatment of Customer Data Following Expiration or Termination
Customer agrees that following termination of this Agreement, or termination or expiration of any Order Form, FlexOS may immediately deactivate Customer’s account(s) associated with the Agreement or applicable Order Form. During the thirty (30) day period following termination or expiration, FlexOS will grant a reasonable number of Authorized Users access to the Service for the sole purpose of retrieving Customer Data. Within a reasonable time thereafter, FlexOS will delete Customer Data from the Service. Notwithstanding the foregoing, Customer understands that FlexOS may retain copies of Customer Data in regular backups or as required by law, which will remain subject to the confidentiality and security standards set forth in Clauses 10 and 11, respectively, for so long as Customer Data is retained by FlexOS. Customer acknowledges that the retention of Customer Data in the Service is at all times subject to FlexOS’s Service data retention policies which shall be made available to Customer upon request and are subject to update from time to time in FlexOS’s reasonable discretion, but in no event shall any such update result in a material reduction of Service data retention periods in effect during Customer’s applicable Subscription Term. Any “snapshot” of Customer Data therefore is inclusive of the FlexOS Service data retention policies in effect at the time of Customer Data retrieval.
FlexOS reserves the right to modify the terms of this TOU from time to time; provided that any such revised terms will only apply to an existing Subscription Terms upon the earlier of: (i) the next renewal of such Subscription Terms; or (ii) 30 (thirty) days from the date the notice of such change was posted on this page (or the FlexOS website) or otherwise provided to you.
Unless otherwise specified in the applicable Order Form, FlexOS may refer to Customer as one of FlexOS’s customers and use Customer’s logo as part of such reference, provided that FlexOS complies with any Customer trademark usage requirements provided by Customer. Upon reasonable request, Customer will serve as a reference account for FlexOS, provided, however, that FlexOS will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference activity. Furthermore, if so specified in the applicable Order Form, FlexOS may either:
issue a press release announcing the relationship between FlexOS and Customer; or
submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed.
FlexOS and Customer will comply with all applicable laws and regulations with respect to performance under this Agreement, including, without exception all requirements of applicable state and federal privacy laws and regulations governing personally identifiable information, personal information, personal data and any other substantially similar term. Without limiting the foregoing, each Party acknowledges that it is aware of, understands and has complied and will comply with, all applicable Vietnamese and foreign anti-corruption (“Anti-Corruption Laws”). Each Party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence
to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations);
to any political party, official of a political party, or candidate;
to an intermediary for payment to any of the foregoing; or
to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person.
Each Party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organizations with whom the other Party is prohibited from dealing (including provision of software, products or services) by virtue of any applicable law, regulation, or executive order.
Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning Party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other Party are paid in full. If Customer is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of FlexOS, then FlexOS may terminate this Agreement upon thirty (30) days prior written notice.
Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the address for such Party as identified on the first page of this Agreement and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. Customer will address notices to FlexOS Legal Department, with a copy to email@example.com. Either Party may from time to time change its address for notices under this Clause 12.8 by giving the other Party at least thirty (30) days prior written notice of the change.
Miscellaneous, Applicable Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of Singapore without regard to principles of conflict of law.
FlexOS shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
Neither Party will be in default or liable under this Agreement by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the reasonable control of such Party, including acts of God or of the public enemy, terrorism, political unrest, Vietnamese or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, failure of third party connections, epidemic, pandemic or virus, utilities or networks, earthquake, hostile attacks, restrictions, strikes, and/or freight embargoes.
Any notices to FlexOS must be sent to firstname.lastname@example.org. The failure of FlexOS to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
You may not assign or otherwise transfer any of your rights hereunder without FlexOS’s prior written consent, and any such attempt is void. FlexOS may freely assign its rights under this Agreement. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.